Big and Small Ideas by Rudy Owens

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How legalized discrimination against adoptees and birth parents took root in post-War America

“Prior to World War II, there was no wide-spread and institutionalized adoption system. When children were born out of wedlock, both the babies and the mothers were considered undesirable. They bore a stigma—got little or no help. But after the war, that changed. Babies became part of a huge new adoption industry … while their unwed mothers were still shunned by society.”

“With respect to attitudes about adoption, white unmarried motherhood is no longer equated with mental disorder or an ability to recover easily from surrendering a child for adoption. A large majority of birth parents are reported to be open to or actually desire contact with adoptees. Adoptive families have come increasingly to be seen as having unique qualities and challenges. … Adoptees searching for information about or contact with their birth families have become families figures and are no longer assumed to be suffering from a mental disorder.”

One of the most under-reported societal stories of the past six decades has been how the U.S. adoption system continues to discriminate against several million adopted Americans. This legal practice is particularly ironic because the movement to make adoption records more secret from adoptees, depriving them of basic human rights, came at a time when voting rights, civil rights, gay rights, disability rights, and women’s rights were expanding for all Americans from the 1950s onward.

University of Baltimore law professor Elizabeth Samuels has documented this national trend with both clarity and meticulous detail in a series of articles she has published starting in 2001 on adoption law and privacy issues surrounding adoption.

Samuels has painstakingly documented in her authoritative study how state adoption laws evolved from the 1930s to the present and how elected state lawmakers systematically closed adoption records between the 1960s and 1990s. The change was championed by state legislatures and social service bureaucracies, with the quiet but critical involvement of the U.S. medical establishment that delivered the babies and cared for the women giving birth.

This happened without any clear evidence proving records secrecy offered benefits to mothers and children placed for adoption. The closing of records was based largely on societal views that stigmatized unwed mothers and particularly adopted children even to this day.

It is likely that many Americans still harbor deep fears and suspicions about adoptees as adults, thanks to archetypal fears of bastard babies and stigmas fueled by unrepentant mental health professionals who caused calculated harm with their pseudo-scientific branding of an adoptees’ quest for information as unhealthy.

Oddly, this movement to seal original birth certificates and birth records of adoptees through the 1990s took place as many adoptees had come of age and began organizing local, state-level, and national movements demanding a universal right to know who they were and where they came from, as found in original identity documents.

A new biography on adoptee rights advocate Jean Paton is now available as a downloadable e-book.

Paton, a mostly unrecognized social leader and equal rights advocate two decades ahead of her time, helped to launch a national adoptees right movement and published two books that advocated for adoptees’ rights. She suggested the creation of a mutual consent registry as early as 1949, for example, and embraced the term “bastard” in the 1970s, long before the emergence of the advocacy group Bastard Nation in the 1990s.

She wrote of her experience before states began to implement discriminatory laws: “In 1942 I had gone to the Probate Court … and looked up my first adoption paper, and saw my mother’s full name signed by her own hand. There was no rigmarole; you were allowed to see your own paper in a kindly procedure.”

When records were open to adoptees, the norm

As Samuels reports, “In the ‘40s and ‘50s, most state laws did permit adult adoptees to view birth records. But by 1960, 26 states were making both original birth records and adoption records available only by court order. Twenty other states still birth records available on demand, but over the following 30 years, all of those states but three—Alaska, Kansas and South Dakota—close records to adults adoptees.”

Samuels shows through a review of state records and recommendations from leading adoption welfare agencies from the 1930s to the 1950s that the groups most involved in handling adoptions and developing recommendations mostly agreed that adult adoptees should have access to their original birth records.

Samuels shows the original legal rationale to provide confidentiality of the birth mother and to keep her from knowing her birth parents was only to “protect adoptees and adoptive parents from the dangers of public access to personal information.”

The intent up through the end of the 1950s was never to prevent adult adoptees from accessing their original birth certificates, which had their original names prior to their adoption and later amended birth certificates with their name provided by the adoptive parents.

The most influential adoption agency of its time, the Child Welfare League of America, noted in its 1941 standards that such protection shielded adoptees “from unnecessary embarrassment in case of illegitimacy.”

In fact the U.S. Children’s Bureau, one of the major players in the development of adoption law through the mid-20th century, fully endorsed adult adoptees’ rights to know who they were, in the form of access to their original birth records, up through the late 1940s. Samuels notes one consultant for the agency defended this already established legal practice nationally, noting, “every person has a right to know who he is and who his people were.”

Samuels’ legal analysis dismantles and thoroughly destroys the predominant justification still used today that the shamed and marginalized pregnant mothers who entered into adoptions from the 1940s onward wanted to have their identities hidden from their birth children. This false narrative still survives today and still continues to allow legalized discrimination and stigmatization of these mothers and their kids.

Samuels unearthed no data or credible study that ever justified this overwhelming legal rationale. It was the view advanced by the interest groups who managed adoptions, notably the social service agencies who brokered more than 1.5 million adoptions from 1951 to 1972— the last year before abortion became legal in the United States.

Many players participated and continue to participate in the “adoption industrial complex.”

“The historical record suggests that birth mothers were in fact seeking a measure of confidentiality,” writes Samuels in her October 2001 op ed published in the Washington Post in 2001. “What mothers wanted, however, was not to prevent the adoptive parents and the children they had surrendered from discovering their identities, but to prevent their communities from learning of their situations.”

When and why “secrecy” became acceptable?

Samuels’ evidence shows that the rationale by state legislatures reflected the social attitudes of their day. It is very likely lawmakers, still majority male from the 1960s to 1990s, were open to the advocacy of interest groups supportive of family ideas not grounded in any scientific research of the birth mothers or adoptees.

Samuels outlines this unproven myth of these three decades with the following main points:

Social attitudes were developing about the nature of adoption.

Adoption was increasingly being regarded as a “complete and perfect” substitute for the creation of families.

A prevailing myth gained credibility that once adoption is legalized, the newly configured family would become the “real family” and the child would be the same and feel the same as if he or she were born into that family.

From the 1940s through the 1960s, child development theories emphasized nurture over nature, and suggested that a birth parent’s purported “morality” would not be transmitted in a child’s development or future actions.

These views coincided with larger societal views that shamed unmarried women. This institutionalizing of this shame can be seen in the development of the Florence Crittenton Homes and other places that spirited away unwed and mostly white women until they gave birth to their kids. (See Anne Fessler’s study of these women, The Girls Who Went Away, for an overview of this system.)

The 2013 film Philomena highlighted the Catholic Church’s role selling Irish babies of unwed mothers to U.S. families eager for children.

There were also illegal operations that allowed babies to be sold or stolen, seen in the case of nearly a dozen “Gertie’s babies” in the 1950s in the American west, who were placed in the adoption black market. In Ireland up through the 1960s, the Catholic Church ran homes for “lost girls” and brokered the sale of babies from single pregnant women to American families, documented in the 2013 film Philomena. (See my story on that film and the Florence Crittenton Homes, “The American Philomena story that is also my own.”)

The adoption industrial complex

Dan Rather recently profiled America’s hidden baby delivery and placement system that put vulnerable, pregnant women in situations that sometimes led to coercive adoptions. His May 1, 2012, episode of Dan Rather Reports, called “Adopted or Abducted?” interviewed women who decades after surrendering their children now claim they were forced to put their babies up for adoption, often with the support of Catholic charities.

This large but little publicized system went beyond the Florence Crittenton Homes and similar facilities that hid young women, including my birth mother and me. The participants were parents desperate for kids, doctors, social workers, clergy, lawyers, nurses, and lawmakers passing laws that ensured the system could operate without disruption. Most believed they were doing the right thing for kids and their moms. The adoptive parents certainly were not causing harm, and offering love and a home. Adoptive families are not being criticized or questioned here for their deeds and their love.

That larger system still exists today, minus the homes for unwed mothers. One estimate puts the value of the adoption industrial complex today at $13 billion per anum.

Not including adoptive parents, I have rarely heard of a single participant in this system ever admit they believed they were wrong, even when compelling evidence has been widely reported for decades in the USA today that secrecy in the adoption system has led to lifelong frustration by adults wanting to know their kin and where they came from.

Dr. Kate Wallter Barret is one of the co-founders of the Florence Crittenton Homes for Unwed Mothers (courtesy of Wikipedia)

Demographics and changing social mores had a large impact in this story too. Data from the National Center for Health Statistics show a dramatic rise in “illegitimate births” during the 25-year period from 1940 to 1965.

Five years later, in 1970, these out-of wedlock births reached 398,700.

More than half were by women 15 to 19 years of age.

By the mid-1960s, close to 400 maternity homes were operating nationwide, often overcrowded. My birthmother stayed in one of these. I was born in the unwed mother’s maternity ward of Detroit’s Crittenton General Hospital, on Tuxedo Street, once affiliated with the National lorence Crittenton Mission.

Sham pseudo-science by psychologists and psychiatrists

What’s particularly shameful from this era is how it promoted women’s virtue at the expense of pregnant women and the hundreds of thousands of adoptees. Complicit in these failings are social workers and health professionals who may have meant well, but who never fully understood the impacts of their activities or never considered the long-term welfare of mothers and their kids.

Psychiatry and psychology professionals colluded in especially damaging ways. They provided a mental health framework to promote ideas that were harmful to millions of Americans whose only failing was to have a child out of marriage or be born out of marriage. (For me, the kooky theories offered from this era still call into question these professionals’ scientific credibility to this day.)

One commentary cited by Samuels of a mental health professional (Viola Barnard) from this era described an adoptee’s curiosity to find his or her identity as “tragically pathological distortions.” Barnard’s views were considered influential in the 1950s and early 1960s on adoption practices, according to Samuels.

Samuels’ review of the literature of the time shows that unmarried mothers who became pregnant were seen as mentally ill—a theory that completely ignored the failures of the legal and moral systems to hold the birth fathers accountable or to shame them equally.

A woman, a white woman in particular, who had sex was seen as a deviant or having a psychopathology. Samuels notes racist views promoted another view that it was natural or normal for less-moral African Americans to have out of wedlock births.

Barbara Melosh’s history on American adoption notes that in postwar America, women who had children out of marriage were “deemed neurotic—as manifesting a disordered femininity.” They were “bad women, their sexual transgressions exposed by pregnancy.” (See Strangers and Kin, 2002.) Even women adopting were tarred as being unfit women because of their infertility.

Anne Fessler profiled this stigma in her 2006 oral history on women before the Roe V. Wade decision who gave up children for adoption, called TheGirls Who Went Away.

In her interview with Rather on often coercive and sometimes illegal methods used to convince young women to surrender their bids for adoption, Fessler said, “In the United States between 1945 and 1973 a million and a half women surrendered children for adoption. I see that period of time as a kind of perfect storm of circumstances that led to all these surrenders. Number one, during the war and after the war there was a change in what was considered acceptable sexual behavior.”

While the men, like my respected ROTC and medical professional birth father, escaped societal scorn, women had to wear the brand of mental illness and be changed.

According to this view, reforming the mentally ill mother could occur with the lifelong separation from her birth child, which would enable the woman a chance to fulfill her desired identity as a woman by raising her own children and family. The burgeoning adoption market provided the “system” through which this idea was sustained—a two-part solution to a problem of change in society.

Unsubstantiated claims from the 1960s onward were made by defenders of closed records that adoptees or birth mothers might wish to extract revenge or extortion. Samuels even cites one instance where efforts in a court case by an adult adoptee to seek their records were denounced by an opposing attorney, who claimed the information could be used by the adoptee to “find and murder his biological parent.”

The bogeyman concept of illegitimate children, however, far precedes the U.S. adoption system and laws that govern it. Adoption laws only date to the 19th century in the United States. Ideas of birth-driven—now considered genetic—identity are historic and rooted deeply in most cultures over time.

TE Lawrence (“Lawrence of Arabia”) was a bastard who was also stigmatized by British society for being born out of wedlock and illegitimately.

Such children call into question property ownership, lines of familial and political succession, moral standing of parents and entire religions, and more. Each society over time has addressed these fears, often brutally for the unlucky illegitimate. Normally, the “bastards” have been ostracized, but also killed. (Please see my article on the demonization of bastards.)

Parenting literature from the 1970s also was awash in guidance to adopted parents how to tell the children they adopted about their origins. But the so-called psychological professionals counseled that any adopted child who sought out their origins was the acting out of fantasy, not one of a human’s most innate desires, documented in nearly all religions and myths as an essential and archetypal human need. (See my article on this archetype and myth.)

The sociologist Katherine Wegar, who has studied the issue of adoptees’ rights and their quests for their birth documentation, suggests that searching for genetic identity is “generally regarded and experienced as an important part of a person’s identity, perhaps even as an archetypal yearning.” Wegar concludes adoptees continued to suffer from societal discrimination that they are inferior to non-adopted persons.

Accepted discrimination, so long as you are adopted or a birth parent

The stigma of adoption was also branded on all adoptees by these prevailing norms from the 1960s onward. These were reinforced by a network of increasingly discriminatory state laws that treated adult adoptees separately, with lesser rights than all other U.S. citizens. Laws were passed in states that blocked adoptees from ever inheriting any property or wealth from natural parents. (Samuels cites the presence of such discrimination in 2001 of slightly less than half of all states preventing such inheritance.)

Author Florence Fisher wrote of her efforts in 1951 to find her birth parents, and the lawyer who arranged the process told her, “You have right to any information whatsoever. You were adopted legally … . You had no other parents.” Author Betty Jay Lifton was told by her psychiatrist she had consulted about her search in the mid-1950s, “Your need to look for your mother is neurotic. You are rationalizing why you must know who your real ‘real’ parent, as you call them, are.”

This was the overwhelming societal attitude I encountered starting in the late 1970s and throughout the 1980s, when I began to openly discussing my adoption as a young person.

During this dark period of lawmaking that closed adoption records one by one in most states, I began my own long, expensive, and ultimately successful search for my biological parents, my family medical background, and my collective family history. This is information that I am entitled to as a human right, though most states had made that right illegal.

During that search, I was told I was being cruel to my adoptive family. I was told I had “issues” that had not been resolved in my infancy or childhood. I was mocked and laughed at by people when I explained I had a German name, but was not German. I was told I was mentally unhealthy. The only people who seemed to give a damn were adoptees.

As Samuels shows, “widespread and entrenched social attitudes about secrecy in adoption” contributed to the closing of birth records to adult adoptees and birth mothers from 1960 to 1990. This was despite the social revolution of the era that was attacking the false adoption secrecy model and challenging the false narrative that adoption provided a perfect replacement to childbirth for families who could not produce children.

Samuels suggests that as single-parent homes among white families became more widespread, unmarried motherhood “was no longer equated with mental illness.” Adoptive families were finally seen as having challenges and qualities, grounded in peer-reviewed studies of outcomes of adoptees and their families.

Many birth parents were found to be open to being contacted. Thanks to the growing proliferation of stories about adoptees’ lack of rights, discrimination by states and agencies against them, and the emergence of a national movement, adoptees’ quests for identify information became less stigmatized. “Adoptees searching for information about or contact with their birth families became familiar figures, no longer assumed to be suffering from mental disorders,” says Samuels.

Samuels also cites arguments circulating in legal and psychological communities that adoptees should be given access to their rightful identity information because denial causes “psychological impairment.”

This idea is fundamentally flawed because it justifies the continued stereotyping of adoptees as mentally harmed, not as persons who are healthy by seeking information and who are doing what should be considered human and utterly normal.

Despite changing societal views, states continued to double down and continued to close records.

About the same time this photograph of me was taken, states across the country were making it impossible for adoptees like me to ever see their original birth certificates by passing laws sealing access to identity documents.

I think this happened because the state legislative environment has many conservative lawmakers in all states. Many of these lawmakers are sympathetic to adoptions as the “solution” to abortion (it is not). I also believe that this political environment is overly receptive to the Christian piety myth of rebirth through adoption that mirrors a conservative Christian notion of being “born again” (being adopted is not being born again, period).

Finally state lawmaking settings rarely rely on evidence alone to pass laws. I have seen on countless occasions when I worked in the Washington State Legislature for two years how single stories carry equal weight to massive evidence contradicting those outlier stories. In such a setting, the views of just one birth mother can be given equal weight of extensive and large bodies of scientific evidence that provide birth mothers and adoptees want to have rights they once had restored.

Samuels argues that laws from the 1970s on failed to ever acknowledge records for adoptees were once open. “It was as if there had never been periods of time in many states, only recently concluded in some and still ongoing in others, during which adult adoptees had legal access to their birth records.”

Evidence from many researchers continues to show adoption secrecy is rejected by the principal actors in adoption: birth parents and their children placed for adoption. Samuels says studies as far back as 1989 showed that “almost ninety percent of birth mothers studied favored being contacted on behalf of their surrendered children.”

Samuels reported in 2001 that:

In state sanctioned intermediary programs (where a third party is a bridge contact between adoptees and birth parents [birth mothers]), 95% of the parents are open to contact.

Hawaii reported that the most typical reaction of their state-run system is one of “great joy, crying, and, “This is the call I’ve been waiting for.”

New Jersey reported that 95 percent of 350 living birth family members contacted in a four-year period wanted contact if adoptees requested it.

More recent data published by the Donaldson Adoption Institute suggests that there is overwhelming support among adoptees, adoptive parents, and birth parents to allow for open records, completely undermining arguments from secrecy proponents.

Question: Do you support adopted persons’ right to access their original birth records? The Donaldson Adoption Institute published data in its 2015 annual report that found overwhelming support for open records for adoptees among the main groups impacted by state laws that legally discriminate again adult adoptees. Note: Survey methods, including how it was conducted and how many participated in the survey, were not provided by the institute, so it is hard to determine the validity of this survey tool.

Failures of intermediaries and registries and the power of a powerless bureaucrat

In some states, such as Michigan, some adoptees and birth mothers can use an approved intermediary and others registries to request original birth records and find biological families. Others cannot simply on the basis of a person’s birth year. I fall into the period of births that closes records, except under strict conditions that require a birth mother to sign a legal release form, reviewed by bureaucrat who makes decisions that they likely have no training to understand.

I also believe a major issue not discussed in adoption research is simply the love of absolute power that mostly powerless bureaucrats and social workers have over adoptees searching for records. A bureaucrat’s imperative is to say “no,” as history shows time and again in a classic Weberian sense of how bureaucracies wield power.

In April 1989 in Detroit, I met a social worker with the Lutheran Child and Family Services and asked for my records and birth certificate. She politely refused to help me. She had the power, it was not “legal,” and she offered no help.

Two days later, after I had found my birth mother with some pretty impressive gumshoe detective work, I returned to the same social worker with a signed statement by my birth mother asking to release my information. The social worker finally released documents about my birth with my original birth name, except my birth certificate.

That type of life-changing power held by mostly lower-level practitioners is intoxicating, and bureaucrats seldom relinquish power once they have seized it. The law is the artifice used to justify it.

Registries and intermediaries in states also support the continuation of restricted access to records for hundreds of thousands of adoptees. They create unnecessary barriers to both birth parents and their kids under an unjustified notion that equal rights, namely, access to birth records, is a conditional right only the state can control.

Were such practices applied to anyone beyond adoptees and birth mothers, the media and advocacy groups would be lambasting state-approved registries and intermediary systems as a form of legal discrimination.

These methods still support a system that is not rooted in science or research, but one that emerged mainly through custom and tradition and the desire of Christian lawmakers to promote adoption alternatives to birth control (my own view of the political landscape). Restrictions also exhibit a raw expression of power by states and their bureaucracies. These methods legitimize the power of a state to control individual rights that most people assume are natural at birth.

With regards to the passive and active registries, Samuels concludes rightly they are “ineffective, demean adult adoptees, and do not remedy the fundamental denial of adoptees’ rights to the kind of basic information about oneself that is available to all other persons.”

Admitting wrongs and changing laws will make a difference

As an adult adoptee, I am grateful for the work of pioneers like Lifton, Fisher, and Paton, who were prophets in the wilderness and who identified injustice and clear wrongs. I remain grateful that stories continue to be published on adoptees finding birth family, and vice versa, as a means of keeping the legal discrimination front and center in the news.

Maclean’s covered the reunion of birth mother Joni Mitchell and her daughter Kilauren Gibb in 1997. Like with many things in life, it was not a fairy tale, but it has put a face on an issue mostly ignored by the public.

Having football heroes like Tim Green and singing icon and former birth mother Joni Mitchell have their personal stories be known to the public helps build awareness of the hidden and ongoing pattern of legalized secrecy that provides no clear benefit to society or those most involved. They humanize the issue.

However, the “compelling human-interest story” that inspires “myriad novels, plays, and movies,” as Wegar calls it, should not be the means to correct past wrongs and to extend equal rights to adoptees.

The language of civil rights, that was broadened to include the rights of gays persons seeking to marry legally and have the same benefits under the law, now needs to be considered in the context of those born into a system in which their rights were never fully considered.

In fact adoptees are doing that with a national MoveOn.org petition asking for the Obama administration to open closed birth records with an executive order, and they are planning to hold a national rally in Washington, D.C., on Sept. 23 and 24, 2016, demanding equal treatment under the law by demanding open records.

As Samuels shows, anonymity rights concocted by mostly male run legislatures, with no recorded evidence submitted on their negative impacts on adopted persons, never existed in practice when the prevailing legal interpretations of the time claimed they did. Myth became truth, in other words.

I hope that the evidence that moves society is more through the studies Samuels cited and books like those written by Barbara Melosh, which are also turned into moving stories.

Evidence exists in other developed countries with a long record of using adoption (England, Scotland, Israel) that there have not been dire consequences for sharing birth identity documentation. Scotland has had open records since 1930, and England and Wales since 1975, both of which saw the benefits to the Scottish legal model that worked.

A useful model to follow is how the Australian Government has reviewed past abuses and harms caused by adoption to birth mothers, their families, and their kids. The government released an extensively researched 2010 report called the Impact of past adoption practices: Summary of key issues from Australian research, which focused on abusive practices that coerced young women to surrendering kids out of marriage.

The report noted: “Contrary to the popular myth that ‘time heals all wounds,’ one theme that was fairly consistent across the different studies and methodologies reviewed here was the notion that the pain and distress of their experience of adoption did not just ‘go away’ with the passage of time.”

The report looked honestly at the country’s past and used research to come to conclusions how to correct the mistakes and acknowledge that adoption was never a perfect system. Australia took a further step when Prime Minister Julia Gillard, in 2013, apologized to the thousands of birth mothers who gave up their children for adoption in situations that amounted to coercion.

There needs to be an honest accounting nationally in the United States, grounded in rigorous reporting and science. That should include testimonials by doctors and mental health experts, and lawmakers, who greased the skids of the flawed U.S. adoption system along the way. They need to step up to the mic, say what they did, and say that we could do better now.

Then there needs to be political and legal action to make it possible for those who were adopted or who gave up children for adoption to experience legal rights other countries grant to their citizens. We will see if the rally in Washington in September 2016 makes a difference. But I doubt states will be rushing to help adoptees anytime soon by granting them all open records access.

Meanwhile, my original birth certificate, bearing my birth name of Scott Douglas Owens*, remains sealed in an office somewhere in Michigan, hidden from me as a state secret, more than a quarter century after I have found my biological families. I will continue having to accept the utter insanity of an imperfect legal system that considers this to be both moral and normal.

(*I decided in August 2009 to legally change my adopted name, Martin Rudolf Brueggemann, to Rudolf Scott Douglas Owens, combining parts of my adopted and birth name. This is a true reflection of who I am, a person born into two families, with two names.)